Majority
p. 219Lord against Kenny.
Headnote
chattel,“it ¡s £ greed that the ie"dor may. ®w« re“¡c®. ir^eturí condition3 ¿“at í¡verymandf the wards,' rescindí and ret”™ the vendor, who receives it with— out objection, and gives back t«e price, the latter is cod-c^ded^bj^ins ™™ji'inid|a.n™ ‘¡¡® l"t“iofr°aI tionofthe<chattel not arising ¡j™ry.a secre* Where, aflefr the» salo rtf aIN ERROR, on certiorari to a justice’s court.
The defendant in error brought an action in the court below ° against the plaintiff in error, for miury done to a horse.
The plaintiff below had agreed to sell the horse to the defendant, and received his note for 120 dollars as the price of the horse; but it was, afterwards, agreed that the defendant might, if he chose, within a reasonable time, deliver back the horse to the plaintiff, in as good condition as when he received him, and take up his note. The defendant below, accordingly, did, afterwards, rescind the contract, by redelivering the horse, •* ® which the plaintiff took without objection as to the condition in ... 7 , . i t - i mt which he then was, and gave up his note to the defendant. The ° A , plaintiff below, afterwards, brought the present action to recover damages, on the ground that the horse, when returned, Was not in as good plight as when sold, and obtained judgment.
As the deterioration, in the value of the horse, was not on account of any secret injury, and as the plaintiff below voluntarily took back the horse, and delivered up the note to the defendant, without any objection or reservation, as to the condition in which the horse then was, the law holds the plaintiff concluded by that act, because he thereby rescinded the contract of sale unconditionally.
If he had, then, set up the claim which he now attempts to enforce, the defendant might have chosen to keep the horse, and abide by the first contract, which he had a right to do.
Injustice has been, done, and the judgment ought to be reversed.
Judgment reversed.